Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Monday, August 28, 2006

Priebe v. Nelson (Cal. Supreme Ct. - Aug. 28, 2006)

Here's a case that should be of interest to anyone who, like me, has a dog. At least if you have a dog that might bite someone. (And, in the proper circumstances, pretty much any dog can bite.)

Justice Baxter's opinion holds two things. First, he holds that even though there's a strict liability statute (Section 3322 of the Civil Code, commonly known as the "dog bite" statute) that makes the owner of a dog strictly liable for any dog bites -- even if s/he didn't have reason to know that the dog might bite -- that law doesn't apply to kennel workers; e.g., when your dog bites someone at a dog kennel. Dog bites in such settings are, the majority holds, instead governed by a beastly version of the "firefighter rule" -- a/k/a, in the animal context, the "veterinarian rule" -- which says that since the victim basically contracted to take on the risk of injury, there's no duty (or at least, no strict liability). Second, notwithstanding the inapplicability of the strict liability statute in such settings, Justice Baxter holds -- in a single paragraph at the end of the opinion -- that a kennel worker can still assert a common law strict liability claim against a dog owner who knowingly keeps a domestic animal with vicious propensities.

As to the central holding, I agree with Justice Baxter, and disagree with Justice Kennard's dissent. Justice Kennard thinks that the majority is disregarding the statute by creating a common law defense. But, in my view, the common law does that all the time; indeed, that's both the power and the wisdom of the common law. The Legislature doesn't think of everything, nor do its categorical pronouncements necessarily envision coverage in all possible scenarios. For example, the Legislature may say (indeed, has said) that everyone is responsible for their own negligence. But such a statute doesn't stop -- nor should it stop -- the judiciary from creating common law rules such as primary assumption of the risk, laches, etc. So I think that Justice Baxter's opinion does something that's both entirely legitimate as well as advantageous from the perspective of public policy. It does indeed seem to me that a kennel worker who has contracted to take care of an animal shouldn't be able to sue if, in taking care of that animal, s/he is bitten. That danger is inherently part of the job.

The only (somewhat marginal) problem that I have with Justice Baxter's opinion is the final paragraph, which holds that kennel workers still may be a common law strict liability claim for harboring a vicious animal. This conclusion seems inconsistent with the preceding analysis. If, as Justice Baxter clearly holds, the owner of an animal has no duty to a kennel worker with respect to injuries that might result from a dog -- or if (again, as Justice Baxter also holds) the kennel worker has contracted to undertake the risk of injury -- then I'm not sure it makes sense to allow a common law strict liability claim even if the dog is vicious. That's the danger of working in a kennel and agreeing to board a dog, no? And, if there's no duty to a kennel worker, then where did the common law duty come from that creates strict liability in such settings?

I'd have liked to see that final -- important -- paragraph explored a bit more. But otherwise, I'm on board for both the analysis and the result. Good job, Marvin.